tv [untitled] May 1, 2012 1:00am-1:30am PDT
we would like to call this meeting of the ethics commission and to order. we will take the role. [reading roll] i would like to also introduce the council for the ethics commission in this matter. scott, from a law firm, sitting in the front there, and before we begin, there is an announcement that he would like to make. >> yes. in the spirit of full disclosure, i want to say that as the record will show, i was appointed as an ethics commissioner on february 8 of this year. prior to the time that i would be subject to the restrictions, insofar as campaign contributions. in late october, early november,
with the opponents of it sheriff mirkarimi. and i made a contribution, as i recall, of about $100. i ensured the sheriff and the attorneys and the mayor's attorneys that the fact that i may have made that contribution, i will say that i have never met him either before or after that time, but the fact that i made that contribution, i approached this hearing totally with an open mind with no preconceived notions one way or another as to the way this hearing should come out. clerk: thank you. mr. renne. a couple of procedural matters. public comment will occur at the end of the hearing and will be
limited to two minutes per person. when we get there, i will provide these instructions again, but we would like people to line up four or five at a time, and then when the fifth speaker has finished giving public speaking, five more can line up. this is to assure an orderly process and to make sure that we comply with all building regulations. so the items on the agenda is the official misconduct proceedings that are now before us. i would invite the attorneys for the mayor and the sheriff to please, -- please, . >> on behalf of the mayor. >> good afternoon, commissioners. all along with my co-counsel, i
have the honor to represent sheriff mirkarimi. >> thank you. i understand that you circulated a memo. >> we did send it to them. >> we have it. given that we just received it, i am not sure that everyone had a chance to review it, and we just got it, but we will make it available. the ethics commission staff has put forth a mellow, suggesting procedures that would govern the official misconduct hearing. i would like to ask my fellow commissioners whether it makes sense to first hear from the party is on their view before
we look at how the procedures should be implemented. any objections to that? ok. so, mr. keith, perhaps we can hear your views on the procedural memo that the commission has put together and what was set forth therein. >> thank you, commissioner. the mayor's goal in these proceedings is to make sure they are fair proceedings in which the commission is going to have an opportunity, and the public is going to have an opportunity to hear all the evidence which is relevant to a determination of official misconduct in this matter. and we have made our proposals in that spirit, and there was a memo in that spirit. one thing that has become clear over the past week with regard
to the sheriff's public statement and the various media outlets is that the determinations that the commission is going to make here and the recommendation that they are going to move forward to the board of supervisors is going to involve the resolution of credibility disputes, going to involve hostile witnesses, is going to involve a lot of witnesses who do not work for the city and so cannot be compelled to sit down and draft out a new written declaration, so i think, what our feeling is on the side of the mayor is that a live hearing is going to better serve the goals of the commission in determining the facts of what happened here. there is nothing like having a live witness subject to examination and cross- examination in order to weigh that person's credibility based on their demeanor, based on issues that may come to light in
the course of other witness testimony, and so our proposal to the commission that we submitted in our memo, and i am happy to summarize here, is really directed towards a live hearing. there is a lot of commissions in the city and county of san francisco that conduct live hearings on matters like this, from the police commission, conducting hearings related to discipline, to the civil commission, which addresses matters under its jurisdiction. they hear live testimony and have something like a mini trial, and we think that " better serve the goal of ascertaining the truth and make a factual record to forward to the board. >> do you have any subjection to submitting briefs to outline the big issues and to put forth your factual evidence so that we can determine where the actual disputes are before entertaining any live testimony?
>> we would be able to summarize the facts in our case for the commission. i think it is unlikely that we would be able to get essentially sworn declarations from a lot of these witnesses, the we can certainly summarize what we expect their testimony could be if the commission things that would be helpful in making the determination of whether a live hearing would be helpful. >> i would presume that there are some witnesses related to the declarations. >> certainly. any city employee could certainly execute a declaration. our concern is more with the folks who are not city employees, and we do not necessarily have that power over them. we can ask them to. they might, in fact, do it, but i have a feeling that the cross- examination of those witnesses would be so long and arduous, and the redirect of those witnesses would be so long and
arduous that it would be more considerate of the witnesses' time to call them in and do it live. we can ask them to do that if that is the commission's decision, but we do not think it is fair to the witnesses or that it is the most helpful way for the commission to reach its decision. >> mr. keith, a few questions, and then i will open it up to my fellow commissioners, as well, and then we will hear from others and perhaps begin you. the mayor has suspended the sheriff without pay. is that correct? >> that is correct. >> and so, presumably, he did so on the basis of known facts. in other words, the complaint was not filed as a notice. this was --
>> he absolutely did, in what he did not have and what he still has are documents that would help to pertain to things like telephone records. for example, telephone records of the various communication on january 4 that the mayor alleges constitutes witness persuasion. the records will tell us which witness called which witness when, and it will help us map out the communications that happened on that day, if it gives rise to witness persuasion, and so the mayor does not have evidence like that. what the mayor did have was statements from some people involved in the communications which certainly in his mind gave him probable cause to feel that the official misconduct had occurred. >> and of those people he spoke to or from whom he obtained evidence, those people would be able to submit declarations? >> some of them are independent
witnesses. they are cooperating with us, but there is a difference between having a short interview and sitting down and running a declaration under penalty of perjury. i cannot say that those witnesses would be willing to cooperate with us. we certainly cannot compel them. >> so your view is that you had enough to put together probable cause charges based on the statements, but you are not sure you would be able to get them to submit sworn declarations to the same effect? >> the process of drafting a sworn declaration, having the witness go through it, making sure everyone -- >> i am aware of that process. >> it is long and difficult, and not all witnesses may be willing to do it. >> other than the person you identified in your memo, is
there anyone that you contemplate, anyone else you think you can get testimony from who you do not at this point anticipate getting a declaration from? >> share of mirkarimi would be one. >> anybody else? >> itiliana lopez would be another. >> we will talk about that. as far as ms. lopez goes, what is the basis for being able to compel her testimony? >> well, the subject matter of her testimony would be relevant to a matter that is under consideration by the ethics commission, so we would think that a subpoena to her under the charter would be proper. >> anybody else? >> let me look at my witness list.
there are three other witnesses, at least three other witnesses, who are independent witnesses who have cooperated with us that we would hope to show up, but we would likely want to subpoena them to make sure they appear before the commission. >> who are they? >> martin, madison, and williams. >> i am sorry, the first one was? >> abe martin. >> other questions from the commissioner's order for mr. keith at this time? >> mr. keith, i have just one
question, and that is how did you -- i read the memo very quickly, but how did you perceive this hearing appearing to proceed? something like a trial? each side would submit trial briefs outlining what you intended to prove, and then you put your evidence in and then submit closing breeds as you would in court, and we would act on that record that you put before us? is that what you had in mind? >> that is our best guide. i think in a sense that the other administrative agencies proceed in a similar way, by reference to the police commission, for example. >> have you discussed this all with mr. -- >> no. >> ok. >> other questions from commissioners? commissioner liu? commissioner liu: mr. keith, there are several factual
allegations, so is it your view that we would have to find these allegations to be true in order to sustain a charge of official misconduct >> the commission, number one, would make a recommendation. the charter does not specify whether there can be multiple recommendations or a majority and a dissent. it does not prohibit that. my assumption is that the commission would make findings of fact. where there are credibility disputes, it would make credibility findings, and then as to each charge, if any of the charges is sustained, the official misconduct has occurred, and that is ultimately a decision for the board of supervisors to make, and we would envision the ethics commission making a finding as to each charge. commissioner liu: the allegations in the complaint or the charging document, would we have to resolve any credibility issues in your favor and fight the allegations to be true in order to recommend that a charge
of official misconduct is sustained? is that what you are saying? >> yes, as to most if not all of the charges, there will be credibility disputes, and there will be factual disputes. for example, the effect of the probation on the sheriff's ability to perform the ability of sheriff. i do not expect the other side to agree that he has been rendered unable to perform those duties and that even if he is that that renders them unable to perform the duties of office, so i expect there to be disputes even on issues that are i guess less driven by a i guess a swearing contest than other issues. commissioner liu: calling witnesses on that point as well, with the discharge of duties, what it in tails? >> that is correct. there may be some areas where we would be able to stipulate the other side as to facts, but i
have a feeling that those stipulations would really be confined to a very dry, historical facts, and i doubt we would be able to stipulate to issues related to the ability to perform duties or fitness for office. commissioner liu: thank you. chair hur: commissioner hayon? commissioner hayon: as the only commissioner not an attorney, what with the alternative look like? would it be a matter of going through written documents as a group, reading them publicly? what would that look like? >> well, i think what the executive director proposed in his memorandum was that each side would essentially submit in writing what they're friendly witnesses would be expected to say if they were here live. that works to some extent, but i think that a lot of the record that we may be looking at, telephone records, for example,
it is not self-evident, necessarily, what is going on. just looking at page of telephone numbers, and those are the kinds of records that would use interpretation, where, say, it witness says i had two telephone calls with this individual, to try to -- we might want to have that record in front of us while we are having the witness answer questions so that we would try to ascertain which of the telephone records correspond to those calls. things like that are very difficult to do when one is sitting alone for viewing a declaration. chair hur: commissioner studley? vice president studley: how
would your procedure differ in terms of the briefing and the time that it would take? i am asking for an estimate. >> certainly. what our proposal would be is that the commission would take briefing immediately on three issues. the first issue being what the standard of proof is, which was one of the bullet points in the executive director's memo. the second issue would be essentially a proposal for rules and procedures that would govern this like hearing. what would this mini trial look like, and we do not need to start from scratch with that. other commissions, for example, the police commission has things that allow for pre-hearing disclosure of evidence from one side to the other. so those would be matters one and two. the third issue that we would request an immediate briefing on, and this is one that is in my memo which has not come up
yet, is the issue of whether share of mirkarimi is going to make a claim that he is entitled to have a hearing that is closed from the public. commissioner mirkarimi is a peace officer, and under one penal code and under one decision of the california supreme court, there is a potential argument that he could make that he is entitled to a closed hearing, is essentially as a peace officer and is being a personnel matter. we disagree, but we think it is incumbent to raise this issue at the very beginning, because we do not want to put all of the work in this decision and have it be undone by some procedural defect at the outset, so we would want, it commissioner mirkarimi is not going to wave and entitlement to a closed hearing, we would want that to be closed immediately, as well. chair hur: do you object to the other items in the memo?
sort of a precursor? >> well, let me put it this way. we just briefed it to the superior court, so we could brief it, but i think briefing on these issues makes a lot more sense in the context of the facts as they are going to come in, because, for example, when you are considering the official duty, what constitutes an official duty, when is someone who is elected sheriff on duty, it is important to have the facts of what that individual is doing between the time of election and being sworn into office. it is important to have the facts of what that individual's job duties are going to be when he gets into office. it is important to know what codes of conduct applied to law enforcement officers wear an act that happens perhaps before somebody starts in a position, whether as the head of the sheriff's department or just the deputy sheriff, and whether that
conduct that occurs before they take the position can effectively disqualified them from performing the duties of office effectively, so i think that these legal questions could be answered in the abstract, and if we are directed, we certainly will, but these are tough issues, and i think it is better for the commission to be able to grapple with them in the context of real facts and evidence that we would get. chair hur: so you would suggest significant post trial briefing. >> findings of fact. chair hur: commissioner studley? commissioner studley: the staff memo, speaking about the need for the examination of witnesses, it seemed to anticipate that it may be case- by-case, that the commission would determine which witnesses we felt the need to see in person and what testimony we can handle on paper, and do you
agree with that? or do you see this as more of an all or nothing presentation of the witnesses, leaving aside those for which there is complete agreement of proof >> well, i think as a practical matter, once we start dealing with particular witnesses and the need for live testimony for particular witnesses, that exception will end up swallowing the world. -- rule. i think we will have a situation where you will want to hear live testimony from most if not all of the witnesses, or each side will want to cross-examine each a declaration for the other side, -- each declarant for the other side. often, the declarations, there are more questions that seem unanswered man seemed answered,
so i think it would be more efficient for the commission to simply take a live evidence. there may be some witnesses where the two sides can agree on on fairly uncontroversial measures, and to the extent we can do that, we will make every effort to do that. we do not want people to have to come in and give testimony in an uncontested manner. but for the witnesses i mentioned earlier, the independent witnesses, i think there is no question that they will be subject to extensive cross-examination, and that will require redirect on our part, fill in the blanks, so i think ultimately, we all save ourselves and the witnesses are lot of trouble, because, remember, these witnesses do not work for the city. they did not ask to be called as witnesses. they did not ask to try to declarations. to the extent they are cooperating with us, they are cooperating out of a sense of civic duty, and i think we should try to make its board and on them not so heavy.
>> mr. keith, the burden of submitting a declaration at the pails to the board and of actually having to testify in a proceeding like this, so if anybody can submit a declaration and not have to testify, i think they would agree that the board is much less than having to testify. >> i agree. if we think it would end at the declaration where there is uncontroversial, we have no problem submitting just declarations for those witnesses. chair hur: does the mayor dispute that he has the burden of proof here? >> no. chair hur: what about timing? when would you anticipate being ready to call witnesses if live testimony were permitted? >> well, that depends on a lot of the proceedings that are going on right now.
as we detailed in our memo, there are several instances of hostile witnesses and and lack of cooperation on the part of the sheriff, using the mayor subpoena power to go to court to get orders for people to comply with subpoenas and also to go to court to get an order to release evidence, criminal court, so assuming all of those chips fall into place and nobody makes any objections, which, frankly, is an assumption that i doubt will ever happen. we expect to be fought every inch of the way on these things. assuming that this court dates came and the subpoena dates came, and we got those without objection, we would be ready to proceed in june, but i very much doubt that is going to happen. chair hur: any other questions for him at this time?
thank you. >> thank you. chair: i do not know when you got this memo, but have you had an opportunity to review it? >> i have. chair hur: what about this and the response? >> well, if i could, i would like to preface my remarks that i think at the outset, we need to make our objections known for any of these proceedings occurring, because the mere fact we are here to try to figure out the rules by which this process is going to work demonstrates the constitutional infirmity of the proceedings, and we object. we objected to the commission doing anything other than dismissing the written charges of misconduct and bring the proceedings to a halt.
now, having said that, i think i am enough of a political realist to understand we're going to have to go forward with the proceedings. i do not think we have a fixed instant decision in the proper order to do things. until we understand what the mayor's evidence is or what is proposed evidence is, there is no way that we can formulate what our response to witnesses or testimony would be. we have the same information as you, the rich and allegations of misconduct, but what i think i just heard him say is that we do not get the evidence to support those charges. the charges were brought before the evidence was in the mayor's possession, so we need to know what they are going to present before we figure at how we will respond. number one. number two, we urgently need
clarification from this condition as to whether or not sheriff mirkarimi is required by law to cooperate with this, quote, investigations that the city attorney has embarked upon, and as we wrote in a letter to the commission, and i trust you have already received that -- chiar hur: what are you referring to? >> i assumed it had been delivered, and if not, i apologize. the city attorney has been trying for a week or more to try to get sheriff mirkarimi to turn over his lawyers files from a criminal case, to sit down for an interrogation, all under the authority of an alleged,
unbounded city attorney right to investigate. now, the charter provisions that i have looked at indicate that if there is an alleged violation of the san francisco campaign and governmental conduct could, a complaint may be made to this commission, and it is this commission that decides to initiate the investigation, and the city attorney may participate in that investigation. i do not see anything in the charter or any other statutes that permit the city attorney to go out and start their own investigation. we need clarification on that issue immediately and urgently, because it seems to us that we would be fighting with one hand tied behind our back if they can go out and prepare whatever they need to prepare to proceed with